Recourse claim between the jointly and severally liable debtors under a credit agreement and Article 7.1 Brussels I bis

AG Bot delivered on 26 April 2017 his opinion in case C 249/16, Saale Kareda v Stefan Benkö, which is about Article 7.1 Brussels I bis (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters).

The facts were the following. The applicant, an Austrian national, is bringing a recourse claim against the defendant, an Estonian national and his former partner, seeking payment of around EUR 17 000 plus interest and costs. While they were living together in Austria, the applicant and the defendant bought a house in 2007 and for that purpose took out three loans (‘the loan’) from an Austrian bank. They were both borrowers and the referring court states that they were both jointly and severally liable debtors. In late 2011, the defendant ended the cohabitation and transferred her centre of interests to Estonia. Her current domicile in Estonia is unknown.

In June 2012, the defendant ceased to meet her loan repayment obligations. The applicant therefore took over his former partner’s repayments, in addition to his own monthly payments, for the period up to and including June 2014. Those repayments are the subject of the case.

The Landesgericht St. Pölten (Regional Court, St. Pölten, Austria), the court of first instance seised by the applicant, contacted the Estonian embassy in Austria in order to ascertain the defendant’s place of domicile, but to no avail. In these circumstances, a representative was appointed on her behalf. The representative, who accepted service for all documents, raised an objection of lack of jurisdiction at first instance on the ground that the defendant is domiciled in Estonia, another Member State. In addition, he considered that the facts set out by the applicant cannot come within the scope of Sections 2 to 7 of Chapter II of Regulation No 1215/2012, which relate to jurisdiction in derogation from the rule of general jurisdiction laid down in Article 4(1) of that regulation. In any event, he claimed that the Landesgericht St. Pölten lacked territorial jurisdiction in so far as the loan was made by an Austrian bank and the place of performance for that loan, the bank’s registered office, is not located in the judicial district of that court.

The Landesgericht St. Pölten found that it lacked international jurisdiction. The case finally reached the Oberster Gerichtshof (Supreme Court, Austria)
The Advocate General considered that Article 7. means “that a recourse claim between the jointly and severally liable debtors under a credit agreement constitutes a contractual claim for the purposes of that provision”. He added that the second indent of Article 7.1 (b) means that “the credit agreement underlying a recourse claim brought by a jointly and severally liable debtor must be classified as an agreement for the provision of services for the purposes of that provision, and the place of performance of the obligation in question is the place where the creditor which grants the credit has its place of business”.

(Altalex, 19 June 2017. Article by Emmanuel Guinchard)

Court of Justice of the European Union

OPINION OF ADVOCATE GENERAL

BOT

delivered on 26 April 2017 (1)

Case C‑249/16

Saale Kareda

v

Stefan Benkö

(Request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria))

(Reference for a preliminary ruling — Jurisdiction in civil and commercial matters — Concept of ‘matters relating to a contract’ — Claim for repayment made by a debtor against the other jointly and severally liable debtor for banking commitments under a joint credit agreement — Determination of the place of performance of the credit agreement)

1. The present case offers the Court another opportunity to clarify the concepts of ‘matters relating to a contract’ and ‘provision of services’ within the meaning of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. (2)

2. The Court is being asked to rule on whether a recourse claim brought between jointly and severally liable debtors under a credit agreement constitutes a contractual claim. If that is so, the Court will have to examine whether such an agreement may be classified as an agreement for the provision of services, which will, as the case may be, lead it to determine the place of performance of its characteristic obligation.

3. In this Opinion I will explain why I think that Article 7(1) of that regulation must be interpreted as meaning that a recourse claim between jointly and severally liable debtors under a credit agreement constitutes a contractual claim for the purposes of that provision.

4. I will then explain why, in my view, the second indent of Article 7(1)(b) of that regulation must be interpreted as meaning that the credit agreement underlying a recourse claim brought by a jointly and severally liable debtor must be classified as an agreement for the provision of services for the purposes of that provision, since the place of performance of the obligation in question is the place where the creditor which grants the credit has its place of business.

I. Legislative framework

A. EU law

1. Regulation No 1215/2012

5. Recital 4 of Regulation No 1215/2012 states:

‘Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters, and to ensure rapid and simple recognition and enforcement of judgments given in a Member State, are essential.’

6. According to recitals 15 and 16 of that regulation:

‘(15) The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile. Jurisdiction should always be available on this ground save in a few well-defined situations in which the subject-matter of the dispute or the autonomy of the parties warrants a different connecting factor. ...

(16) In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. This is important, particularly in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation.’

7. Article 4(1) of the regulation provides that ‘[s]ubject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State’.

8. Article 7 of Regulation No 1215/2012 reads as follows:

‘A person domiciled in a Member State may be sued in another Member State:

(1) (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;

(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:

– in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered;

– in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided;

(c) if point (b) does not apply then point (a) applies;

...’

2. Regulation (EC) No 593/2008

9. According to recitals 7 and 17 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I): (3)

‘(7) The substantive scope and the provisions of this Regulation should be consistent with Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [ (4)] (Brussels I) and Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) [ (5)].

...

(17) As far as the applicable law in the absence of choice is concerned, the concept of “provision of services” and “sale of goods” should be interpreted in the same way as when applying Article 5 of Regulation … No 44/2001 in so far as sale of goods and provision of services are covered by that Regulation. Although franchise and distribution contracts are contracts for services, they are the subject of specific rules.’

10. Article 16 of that regulation, entitled ‘Multiple liability’, is worded as follows:

‘If a creditor has a claim against several debtors who are liable for the same claim, and one of the debtors has already satisfied the claim in whole or in part, the law governing the debtor’s obligation towards the creditor also governs the debtor’s right to claim recourse from the other debtors. The other debtors may rely on the defences they had against the creditor to the extent allowed by the law governing their obligations towards the creditor.’

3. Directive 2002/65/EC

11. Article 2(b) of Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC (6) defines ‘financial service’ as ‘any service of a banking, credit, insurance, personal pension, investment or payment nature’.

B. Austrian law

12. Paragraph 896 of the Allgemeines Bürgerliches Gesetzbuch (Civil Code, ABGB) states that a jointly and severally liable debtor who has paid the whole debt on his own is permitted, even without any transfer of rights, to claim compensation from the other debtors in equal shares if no other proportion has been agreed between them.

13. Before its amendment by the Zahlungsverzugsgesetz (Law on late payments) of 20 March 2013, (7) Paragraph 905(2) of the ABGB provided that, in case of doubt, the debtor must make monetary payments to the creditor at his domicile (place of business) at the debtor’s own risk and cost.

14. The Zahlungsverzugsgesetz also inserted Paragraph 907a into the ABGB, which provides that an obligation to pay a sum of money must be satisfied at the domicile or place of business of the creditor by payment of the sum there or transfer of the sum into a bank account specified by the creditor.

15. Under Paragraph 1042 of the ABGB, anyone who incurs expenditure for another who, in accordance with the law, should have incurred such expenditure himself is entitled to claim compensation.

16. Paragraph 1503(2)(1) of the ABGB provides that Paragraph 907a of the ABGB, as amended by that law, should apply to legal relationships established as from 16 March 2013. The previous provisions continue to apply to legal relationships established prior to that date. However, if such previously established legal relationships provide for recurring payments, the new provisions apply to those payments falling due as from 16 March 2013.

II. Main proceedings

17. Before the Austrian courts, Stefan Benkö (‘the applicant’), an Austrian national, is bringing a recourse claim against Saale Kareda (‘the defendant’), an Estonian national and his former partner, seeking payment of EUR 17 145.41 plus interest and costs.

18. While they were living together in Austria, the applicant and the defendant bought a house in 2007 and for that purpose took out three loans totalling EUR 300 000 (‘the loan’) from an Austrian bank. They were both borrowers and the referring court states that they were both jointly and severally liable debtors.

19. In late 2011, the defendant ended the cohabitation and transferred her centre of interests to Estonia. The referring court states in this regard that her current domicile in Estonia is unknown.

20. In June 2012, the defendant ceased to meet her loan repayment obligations. The applicant therefore took over his former partner’s repayments, in addition to his own monthly payments, for the period up to and including June 2014. Those repayments are the subject of the present action.

21. The Landesgericht St. Pölten (Regional Court, St. Pölten, Austria), the court of first instance, contacted the Estonian embassy in Austria in order to ascertain the defendant’s place of domicile, but to no avail. In these circumstances, a representative was appointed on her behalf.

22. The representative, who accepted service for all documents, raised an objection of lack of jurisdiction at first instance on the ground that the defendant is domiciled in Estonia, another Member State. In addition, he considered that the facts set out by the applicant cannot come within the scope of Sections 2 to 7 of Chapter II of Regulation No 1215/2012, which relate to jurisdiction in derogation from the rule of general jurisdiction laid down in Article 4(1) of that regulation. In any event, he claimed that the Landesgericht St. Pölten (Regional Court, St. Pölten), the court seised by the applicant, lacked territorial jurisdiction in so far as the loan was made by an Austrian bank and the place of performance for that loan, the bank’s registered office, is not located in the judicial district of that court.

23. By order of 5 August 2015, the Landesgericht St. Pölten (Regional Court, St. Pölten) found that it lacked international jurisdiction. The applicant appealed against that order at the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria), which, by order of 28 December 2015, varied the order of 5 August 2015.

24. The defendant then brought an appeal on a point of law at the referring court.

III. Questions referred for a preliminary ruling

25. The Oberster Gerichtshof (Supreme Court, Austria), which has doubts as to the interpretation of provisions of EU law, decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Must Article 7(1) of Regulation No 1215/2012 be interpreted as meaning that, where a debtor under a (joint) credit agreement with a bank has, on his own, made the repayments due under that credit agreement, a reimbursement claim (compensation/recourse claim) brought by that debtor against the other debtor under that credit agreement constitutes a derived (secondary) contractual claim arising from that credit agreement?

2. If Question 1 is answered in the affirmative:

Is the place of performance of a debtor’s reimbursement claim (compensation/recourse claim) against the other debtor arising out of the underlying credit agreement to be determined:

(a) in accordance with the second indent of Article 7(1)(b) of Regulation No 1215/2012 (‘provision of services’) or

(b) in accordance with Article 7(1)(c), in conjunction with Article 7(1)(a), of Regulation No 1215/2012 on the basis of the lex causae?

3. If Question 2(a) is answered in the affirmative:

Is the service characterising the credit agreement the granting of the loans by the bank, and is, therefore, the place of performance of that service determined in accordance with the second indent of Article 7(1)(b) of Regulation No 1215/2012 by the registered office of the bank, if the loans were provided exclusively at that place?

4. If Question 2(b) is answered in the affirmative:

For the purpose of determining the place of performance for the non-performed contractual obligation in accordance with Article 7(1)(a) of Regulation No 1215/2012, is the decisive date:

(a) the date on which the two debtors took out the loans (March 2007) or

(b) the dates on which the loan debtor entitled to recourse made to the bank the payments from which he derives the recourse claim (June 2012 to June 2014)?’

IV. My analysis

26. In the present case the referring court is seeking to determine, under the rules on jurisdiction laid down by Regulation No 1215/2012, the court having jurisdiction over the dispute in the main proceedings.

27. The difficulty arising in this case stems entirely from the fact that the main claim brought by the applicant is a recourse claim between jointly and severally liable debtors originating from a credit agreement concluded between them and an Austrian bank.

28. In actual fact, the question which must be answered before examining the rules on jurisdiction which are likely to relate to the situation in the main proceedings is whether, for the purposes of the application of that regulation, it is possible to ‘detach’ from the credit agreement the legal relationships arising between jointly and severally liable debtors following the conclusion of that agreement or whether this forms an inseparable whole.

29. For the reasons set out below, I think that the legal relationships between jointly and severally liable debtors arising from the conclusion of a credit agreement are inseparable from that agreement.

30. Those legal relationships stem from the credit agreement to which the jointly and severally liable debtors have together freely consented. In the relationships with the common creditor, they have therefore each agreed to pay the debt in its entirety. The service consisting in loaning money is inseparable from the repayment obligation. A loan which is not associated with a repayment obligation would actually be a donation. The joint and several repayment obligation is therefore an integral part of the contractual mechanism.

31. The fact remains that a jointly and severally liable debtor who has paid, in whole or in part, the other debtor’s share in the common debt may reclaim the amount paid by bringing a recourse claim. The purpose of that claim is therefore itself linked to the existence of the agreement. Consequently, it would be artificial, for the purposes of the application of Regulation No 1215/2012, to separate those legal relationships from the agreement which gave rise to them and on which they are based. (8) To decide otherwise could have the effect of multiplyingtheheads of jurisdiction for claims based on a single agreement. The court of one Member State would have jurisdiction over disputes arising between the jointly and severally liable debtors and the bank, while the court of another Member State would have jurisdiction over disputes arising between the jointly and severally liable debtors themselves.

32. It is therefore more consistent for all the matters which may arise following the conclusion of a credit agreement to be examined by the same court. Moreover, this is expressly provided for by the Rome I Regulation on the law applicable. As the European Commission points out, Article 16 of that regulation, entitled ‘Multiple liability’, provides inter alia that, ‘[i]f a creditor has a claim against several debtors who are liable for the same claim, and one of the debtors has already satisfied the claim in whole or in part, the law governing the debtor’s obligation towards the creditor also governs the debtor’s right to claim recourse from the other debtors’.

33. I cannot therefore see any reason why another approach should be taken in determining the court having jurisdiction over a recourse claim brought by a jointly and severally liable debtor under a credit agreement against the other jointly and severally liable debtor, especially since the reciprocal application of the Rome I Regulation and Regulation No 1215/2012 requires consistency in their interpretations. (9) In addition, separating the legal relationships between jointly and severally liable debtors from the agreement between them would run counter to the objective pursued by Regulation No 1215/2012 that rules of jurisdiction should be highly predictable. (10) Thus, for jointly and severally liable debtors, knowing that disputes that may arise from their legal relationships would be subject to the same rules on jurisdiction as those governing the credit agreement itself is undoubtedly highly predictable.

34. In the light of all these considerations, I therefore take the view that the jurisdiction of the court competent for examining a dispute relating to the legal relationships between jointly and severally liable debtors arising from the conclusion of a credit agreement must be that provided for in respect of disputes arising from that agreement.

35. Thus, as the credit agreement constitutes a contractual claim without any doubt whatsoever, I take the view that Article 7(1) of Regulation No 1215/2012 must be interpreted as meaning that a recourse claim between the jointly and severally liable debtors under a credit agreement constitutes a contractual claim for the purposes of that provision.

36. Having said that, the referring court is seeking to ascertain what would be the place of performance of the obligation in question, that place being determined differently under Article 7(1) depending on whether the agreement in question is an agreement relating to goods, an agreement for the provision of services, or neither.

37. Thus, by its second and third questions, the referring court asks, in essence, whether the second indent of Article 7(1)(b) of that regulation must be interpreted as meaning that the credit agreement underlying a recourse claim brought by a jointly and severally liable debtor must be classified as an agreement for the provision of services for the purposes of that provision. If that is the case, is the contractual obligation characterising that agreement the granting of the loan, the place of performance of the obligation then being the registered office of the bank?

38. There is no doubt in my view that the credit agreement is an agreement for the provision of services.

39. The Court has ruled that ‘the concept of service implies, at the least, that the party who provides the service carries out a particular activity in return for remuneration’. (11) It has held that the existence of an activity requires the performance of positive acts, to the exclusion of mere omissions. (12) It has thus excluded from such classification a licence agreement by which the owner of an intellectual property right grants the other contracting party the right to use that right in return for remuneration in so far as the owner of an intellectual property right does not perform any service in granting a right to use that property and undertakes merely to permit the licensee to exploit that right freely. (13)

40. The situation is different in the case of the credit agreement. By that agreement, a lender, the credit institution, agrees or undertakes to agree to lend a sum of money to the borrower for a term of payment, while the borrower undertakes in return to repay that sum, the remuneration for the loan consisting in the payment of the interest accrued. The provision of services resides in the release of that sum by a credit institution which normally conducts what are known as ‘bank operations’.

41. Accordingly, the loan operation is a financial service. Furthermore, as the referring court states, this is evident from Article 2(b) of Directive 2002/65, which defines ‘financial service’ as ‘any service of a banking, credit, insurance, personal pension, investment or payment nature’.

42. The mere fact that the activity of the party which provides the service falls within the financial sector cannot have the effect of excluding agreements relating to such activity from the application of Article 7(1)(b) of Regulation No 1215/2012. It seems in this respect that the legislature did envisage including services of this kind within the scope of that regulation on jurisdiction. As is observed by the referring court and the Commission, Article 63(1) of Regulation No 44/2001 provided for an exception to the application of the rules on jurisdiction in contractual matters where the place of provision of the services was in Luxembourg. However, under Article 63(3), the provisions of that article did not apply to contracts for the provision of financial services, which meant that such contracts were governed by the rule on special jurisdiction in Article 5(1) of the regulation, which today corresponds to Article 7(1) of Regulation No 1215/2012.

43. The credit agreement must therefore, in my view, be classified as an agreement for the provision of services for the purposes of the second indent of Article 7(1)(b) of that regulation.

44. It must now be determined what is the place of performance of the obligation in question. Under the second indent of Article 7(1)(b) of that regulation, that place is the place in a Member State where, under the contract, the services were provided or should have been provided. In actual fact, it is necessary to determine the place of performance of the obligation which characterises the agreement, which is the connecting factor for determining the court with jurisdiction. (14)

45. In the present case, I think that, in the context of a credit agreement, that characteristic obligation is the actual granting of the sum loaned. The other obligation entailed by such an agreement, namely the borrower’s obligation to repay the sum loaned, exists only through the performance of the service by the lender, as repayment is merely its consequence.

46. As to the actual place of performance of the characteristic obligation, in my view, only the place where the creditor has its place of business is capable of ensuring that the rules are highly predictable and of satisfying the objectives of proximity and standardisation pursued by the second indent of Article 7(1)(b) of Regulation No 1215/2012. (15) That place will be known by the parties from the time of the conclusion of the agreement and will also be the place of the court having the closest connection with that agreement.

47. Therefore, in the light of all the above considerations, I think that the second indent of Article 7(1)(b) of that regulation must be interpreted as meaning that the credit agreement underlying a recourse claim brought by a jointly and severally liable debtor must be classified as an agreement for the provision of services for the purposes of that provision. The place of performance of the obligation in question is the place where the creditor which grants the credit has its place of business.

V. Conclusion

48. In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Oberster Gerichtshof (Supreme Court, Austria) as follows:

1. Article 7(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a recourse claim between the jointly and severally liable debtors under a credit agreement constitutes a contractual claim for the purposes of that provision.

2. The second indent of Article 7(1)(b) of Regulation No 1215/2012 must be interpreted as meaning that:

– the credit agreement underlying a recourse claim brought by a jointly and severally liable debtor must be classified as an agreement for the provision of services for the purposes of that provision, and

– the place of performance of the obligation in question is the place where the creditor which grants the credit has its place of business.